Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Sir Robert Dalzell
v.
Maxwell of Tunnel

Date: 21 December 1673

Click here to view a pdf copy of this documet : PDF Copy

There being mutual declarators pursued betwixt the said parties, one at the instance of the said Sir Robert Dalzell, for declaring the property of the Muir of Auchnean, and the moss therein contained; and the other at Tunnel's instance, for declaring that he had a right of commonty in the said muir, as being infeft in his lands of Tunnel, cum communi pastura, and in continual possession, past memory of man;—the Lords, having granted a commission for examining of witnesses for both parties anent the manner of the possession, after report whereof, the cause being heard in præsentia:—

It was alleged for Sir Robert, That his declarator of property ought to be sustained; and Tunnel's right of commonty could never be declared; because he stood infeft in the barony of Hempsfield and the lands of Auchnean, as proper parts and pertinents thereof, by a special charter granted by the King, whereby the said lands are particularly bounded, and wherein the said muir and moss now in question did locally lie; and, by virtue thereof, he and his authors have been in the possession of the said muir as their property, by tilling and labouring of some parts thereof, and by debarring the Lairds of Tunnel, and their servants from pasturage, and receiving a yearly duty of kain fowls from his tenants for a tolerance, when they were not debarred.

It was alleged for the Laird of Tunnel, That the said Sir Robert's infeftment, albeit it was a bounding evident of property, yet it could not be obtruded to prejudge Tunnel's right of commonty, or to be a ground of declarator of Sir Robert's property; because the said infeftment was only granted in anno 1613, upon Hempsfield's own resignation; which is long posterior to the Act of Parliament 1592, bearing, that all such bounding evidents, upon the vassal's resignation, cannot prejudge any third party, either of property or commonty: Likeas, he remitted himself to the depositions of the witnesses; whereby it would appear, that, notwithstanding thereof, he had been in constant and immemorial possession of common pasturage, and casting feal and divots, and winning peats out of the moss, past memory of man. And, as to the interruptions, they are but very few deeds, and that via facti; but no legal interruption within these forty years; except within these four or five years bygone, by Sir Robert himself: neither were the payment of the fowls by Tunnel's tenants proven, but when Hempsfield was tutor or curator to the Laird of Tunnel many years ago; and the assertion of the witnesses could not prove the cause of payment thereof, which they only had ex audita.

The Lords, after reading or the depositions of the witnesses adduced by both parties, did find, 1st. That Sir Robert had the only right of property, by the said charter granted by the King; against which Tunnel being only infeft cum communi pastura, could give him only a right of servitude, which was consistent with the right of property, which undoubtedly, before the said bounding-charter, was in the king's person. 2d. As to the right of pasturage, with the privilege of casting divots and peats out of the moss, they did likewise find, That Tunnel, being interrupted within the forty years, and by payment of moss-fowls, which could be attributed to no other cause but for a licence or tolerance, his declarator of commonty could not be sustained. Which was very hard as to the privilege of pasturage; seeing the witnesses for both parties did clearly prove the same to have been constant, and of a very long endurance, and that the interruption thereof by Hempsfield was only proven by a very few witnesses, and those were only that once he had threatened a tenant who was casting divots; and once offered to drive the goods off, which was forty years ago; and, notwithstanding, did suffer him continually to pasture without any legal diligence by intenting an action of declarator or contravention. And as to the payment of the kain-fowls, it was only done very long ago, and they being designed moss-fowls, and exacted by Hempsfield from the tenants, who had never warrant from Tunnel, whatever might be inferred from thence to evince that they had thereby a licence to win peats in the moss, yet that could be no ground to evince that the right of common pasture was by tolerance; seeing Tunnel was infeft expressly in his lands, cum communi pastura, which lay contiguous to the said muir as to a part thereof, which had a clear entry thereto bv the space of two pair of butts and a loaning, wherein there is no bounding or mark to divide them; and accordingly had free ish and entry daily to pasture and to cast divots, notwithstanding of any alleged interruption.

Page 371.